NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. FRANCISCO GALLEGOS

- LOPEZ ,

Defendant

- Appellant. No. 17

- 50420
D .C. No. 3:17

- cr - 00 1438

- BEN

- 2

MEMORANDUM *

Appeal from the United States District Court for the Southern District of California Honorable Roger T. Benitez , District Judge, Presiding

Submitted December 17, 2018 **
Before: WALLACE, SILVERMAN, and Mc KEOWN , Circuit Judges. Francisco Gallegos

- Lopez a ppeals from the district court’s judgment and challenges the above

- Guidelines 41

- month sentence imposed following his guilty

plea conviction for harboring an alien , in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and (v)(II)

. We ha ve jurisdiction under 28 U.S.C. § 1291. W e affirm in part, and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 

# FILED

DEC 19 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 17

- 50420

vacate and remand in part

. Gallegos

- Lopez contends that the district court procedurally erred by first determining and imposing the sentence, and then calculating the correct Guideline s
range
. See, e.g. , Peugh v. United States , 569 U.S. 530, 541 (2013) (“[D]istrict
courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process.” ) (internal quotations omitted)

. We review the district court’ s sentencing procedure for plain error because Gallegos

- Lopez failed to preserve the issue properly at the sentencing hearing

. United States v. Valencia

Barragan , 608 F.3d 1103, 1108 (9th Cir. 2010). On this record, we conclude that there is none. Gallegos

- Lopez informed the court at the start of the hearing that the parties agreed upon the Guidelines range, and the court noted both that it had reviewed the sentencing memoranda and that there were no object ions to the presentence report. Further, the court’s discussion of the 18 U.S.C. § 3553(a) sentencing factors throughout the hearing demonstrates that it was considering whether and why to vary from the agreed

- upon Guidelines range. Thus, despite the district court’s failure to calculate the Gu idelines range at the outset of the hearing, the record reflects that it was aware of the range and had the correct range in mind throughout the proceeding. To the extent Gallegos

- Lopez also challenges the substantive reasonableness of his sentence, we con clude the district court did not abuse its discretion. See3 17

- 50420

United States v. Autery , 555 F.3d 864, 871 (9th Cir. 2009)

. The record reflects a rational and meaningful consideration of the section 3553(a) factors , and the totality of the circumstances suppo rt the sentence

. See Autery , 555 F.3d at 878. Contrary to Gallegos

- Lopez’s contention, the district court did not err when it refused to recommend Gallegos

- Lopez serve his sentence at a prison with a “drop

- out” facility. See 18 U.S.C. § 3621(b) (recommendations by sentencing
court to BOP are non

- binding). However, we agree with Gallegos

- Lopez, and the government concedes, that the case should be remanded because the court added three non - standard conditions of supervised release to the sentence after the sentencing hearing without notice to Gallegos

- Lopez. See United States v. Napier , 463 F.3d 1040, 1042

– 43 (9th Cir. 2006). We thus remand and instruct the district court to strike conditions 4, 7, and 8 from the written judgment. See United St ates v. Hicks , 997 F.2d 594, 597 (9th Cir. 1993) (where there is a direct conflict between the oral pronouncement and the written judgment, remedy is remand to the district court to make the written judgment consistent with the oral pronouncement).
AFFI RMED IN PART; VACATED AND REMANDED IN PART .